Baka Jiji & Anor V. Ibrahim Abare (1998)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the judgment of the Yobe State Sharia Court of Appeal holden at Potiskum delivered on 1/6/94 which reversed the earlier decision of the Upper Area Court, Damagum.

The facts of this case briefly put are as follows:

This case was transferred by the Yobe State Sharia Court of Appeal for retrial at the Fune Upper Area Court Damagum. The respondent herein as plaintiff at Fune the Upper Area Court Damagum (hereinafter referred to as the UAC) sued the appellants herein as defendants claiming as per page I of the records, a farmland alleging that it belonged to his father, who gave it on loan to the 1st appellant who had failed to return same back to the respondent. On being confronted with the respondent’s claim, the 1st appellant said he was given the land by one Baba Dira, their village head and the appellants thus denied the claim. The appellants further contended that ever since the gift to them they had been in long and undisturbed possession. The trial court, after hearing four witnesses, called for the respondent and two called for the appellants, dismissed the respondent’s claim.

Dissatisfied with this judgment of the UAC (Upper Area Court), the plaintiff/respondent. appealed to the Yobe State Sharia Court of Appeal Damaturu, holden at Potiskum on various grounds. At the Yobe State Sharia Court of Appeal (hereinafter referred to as the SCA), the Shari a Court of Appeal heard arguments from both sides and consequently reversed the decision of the trial Upper Area Court (UAC) after administering oath to two of the respondent’s witnesses holding that the respondent had proved his case against the appellants at the trial Upper Area Court (UAC) and that the: latter ought not to have been given the oath of denial.

See also  Alphonsus Obinwa V. Commissioner of Police & Ors. (2006) LLJR-CA

Dissatisfied with the judgment of the Sharia Court of Appeal, the defendants/appellants (hereinafter referred to as the appellants) have again appealed to this court on three grounds. From the three grounds of appeal, the appellants have formulated the following three issues for determination in this appeal which have not been contradicted by the respondent. These are:

“(i) Whether the Sharia Court of Appeal had jurisdiction to entertain the appeal before it.

(ii) Was the Shari a Court of Appeal right in administering oath on the respondent’s witnesses’?

(iii) Whether un the evidence before the court, the judgment of the lower court was proper in law.”

Both counsel to the parties filed their briefs of argument on behalf of the parties. When this appeal came before us on 24/11/98, learned counsel to the appellants. Mr. Peter Agbese holding R.O. Yusufu’s brief, adopted and relied on the appellants’ brief deemed filed by the order of this court made on 24/6/96 and urged the court to allow the appeal. By way of reply, learned counsel to the respondent. Mr. M.B. Salihu, also adopted and relied on the respondent’s brief deemed filed herein on 6/8/96 and urged this court to dismiss the appeal. I shall now examine the submissions of both learned counsel to the parties vis-a-vis the records and the prevailing law. However, since jurisdiction is the basis of adjudication, it is hoped to deal with issue 1 which centres on jurisdiction since the outcome of this issue will determine whether or not the other issues will be considered.

See also  Mrs. Irene Fubara Manuel V. Chief O. O. Oruwari & Anor (2004) LLJR-CA

On issue 1 dealing with jurisdiction of the Sharia Court of Appeal to entertain the present appeal, learned counsel to the appellants at pages 2-4 of appellants’ brief submitted that since the claim of the plaintiff/respondent at the lower court is for title to land simpliciter, it is outside the ambit of s. 242(2) of the 1979 Constitution. Consequently, learned counsel submitted that the Sharia Court of Appeal lacked jurisdiction to entertain the appeal. Learned counsel referred to Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) SCNJ (Pt.11) 388 p.400 411-413. By way of reply, learned counsel to the respondent at pages -3 of the respondent’s brief submitted that it is the claim of the plaintiff al the trial court that determined the jurisdiction of the court. He submitted further that since the claim of the respondent at the lower court is a matter of inheritance in the hand of the appellants, it falls within s. 242(2) of the Constitution to confer jurisdiction on the Sharia Court of Appeal.

I have considered the arguments of both learned counsel to the parties on this issue of jurisdiction, it is my view that the plaintiffs claim (rather than the defendant’s counter-claim) at the lower court that determines the jurisdiction or the court in a matter of this nature. See Alh. Umam Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, (1989) 9 SCNJ 1; Eng. S.D. Yalju-Amaye v. Associated Registered Engineering Contractors Ltd. (1990) 4 NWLR (Pt. 145) 422; (1990) 6 SCNJ 149. In the light of these authorities, it is necessary to examine the claim of the respondent before the trial Upper Area Court. This as can be gathered at the beginning of this judgment was a claim for the return of a farmland given on loan to the father of the appellants which the appellants refused to return claiming same to be a gift to their father by the village head. From this claim, it can be seen that the dispute al the trial Upper Area Court relates to the Ownership of a disputed farm land.

See also  Sunday Idakwo & Anor V. Emmanuel Ilona (1998) LLJR-CA

At this juncture it is clear that the poser raised in this appeal is whether the Yobe State Sharia Court of Appeal had jurisdiction over the appeal. This poser had come for determination and resolution in various decisions of this court to the effect that once the issue of appeal is title to land simpliciter, the jurisdiction of the Sharia Court of appeal is ousted. See Isa v. Kardo (unreported) appeal No. CA/J/32s/85 (delivered by this Shari a appellate Bench of the Court of Appeal on 16/10/85: Abuja v. Bizi (1989) 5 NWLR (pt. 119) 120. See also Umam Alhaji Garba v. Adamu Dogon-Yaro (1991) 1 NWLR (Pt. 165) 102 where this panel of the Court of Appeal on the issue of jurisdiction of the Sharia court of Appeal based on S. 242 of the 1979 Constitution held at p. 105 per Okunola, J.C.A. thus:

“By virtue of s. 242(2) of the 1979 Constitution Sharia Court of Appeal has jurisdiction to determine any question of Islamic law regarding wakf, will or succession where the endower, donor, testator or deceased person is a Moslem. Thus, Sharia Court of Appeal has no jurisdiction to determine issue involving title to land.”

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